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Introduction

Criminal informants provide important information to the justice system, but they also pose serious risks. We hope this website will help attorneys, journalists, advocates, and families to better understand this vital area of public policy.

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WRONGFUL CONVICTIONS

Criminal informants are famously unreliable. Jailhouse snitch testimony often leads to wrongful conviction. Over 45 percent of all innocent people exonerated from death sentences were wrongfully convicted based on the testimony of a lying criminal informant. This makes snitches the leading cause of wrongful conviction in U.S. capital cases.

YOUNG INFORMANTS

Police sometimes use children as young as 14 as informants. These children may be exposed to drugs, violence, and other criminal activities as they work to get information for their handlers. Some have been killed. California and New Jersey have laws restricting the practice: in other states police have discretion to use juvenile informants.

INFORMANT CRIMES

Some informants are serious criminals who receive leniency for their own crimes. The FBI has been known to use murderers as informants. Many jurisdictions permit drug dealers to continue selling drugs in exchange for cooperation. In 2011, the crimes committed by FBI informants alone totaled over 5,600.

URBAN COMMUNITIES PAY THE PRICE

Informants are a staple of drug enforcement. This means that where drug enforcement is heaviest, informant activity is also heaviest. Because drug arrests occur disproportionately in low-income African American neighborhoods, those residents must live with the crime, violence, and distrust that go with criminal informant use.

REFORM

Many states are rethinking their criminal informant policies. Some have passed laws restricting the use of jailhouse snitch witnesses. Some have created new rules for disclosure and accountability. The U.S. Congress is considering a number of reforms that would improve transparency and safety. In the future, the laws governing criminal informants will likely look very different than they do today.

Recent Blog Posts

Monday, November 30, 2009

While in New York I'll be talking about the book on the Leonard Lopate Show, WNYC Radio, on Wednesday, Dec. 2 at noon (eastern). You can listen to the live broadcast here. I'll also be on the Joey Reynolds Show, WOR Radio, which will air Thursday, Dec. 3, around 1:00 a.m. here.

In 2001 in Dallas, Channel 8 TV and the Dallas Morning News revealed how a ring of police and their paid narcotics informants planted fake drugs (gypsum) on innocent Latino immigrants in order to inflate department drug bust statistics. Many of those innocent victims were deported before the scam was discovered. Now the main informant in that ring--Enrique Martinez Alonso--has been convicted again, this time for counterfeiting. See this post from GritsforBreakfast for an overview; here's the story from the Dallas News. This story is a classic example of how snitches can leverage cooperation to avoid punishment for ongoing serious crimes. Not only did the six informants led by Alonso earn $440,000 for their roles in the fake drug scandal, but Alonso's subsequent criminal sentences were drastically reduced because of his cooperation with authorities--he served five years before being deported in 2007, while his brother received a 20-year sentence. As Grits points out:

Enrique was always portrayed by the media and officialdom as the main informant working with Delapaz (and the seven other officers who allegedly faked field tests claiming Alonso's drugs were real), so it's somewhat shocking to learn he received a sentence only 25% of his brother's. That's a steep discount for his second stint as an informant - this time against his co-conspirators and police "handlers." This fellow keeps being compensated for snitching on others - by Dallas police, by the feds - even when he appears to be at the center of the criminal activity in question.

Monday, November 23, 2009

Cleared of murder charges after serving 18 years, Fernando Bermudez was freed on Friday. See NYT story here and my

previous post. Four witnesses recanted their testimony, stating that they had been pressured by the government into identifying Mr. Bermudez as the shooter. The main witness, Efraim Lopez, testified falsely under a cooperation agreement guaranteeing that he would not be charged with any crimes, even though he was centrally involved in the shooting. Judge Cataldo concluded that the government either knew or should have known Lopez was lying. Judge Cataldo's opinion is available here. Although the government concedes that its main witness Lopez perjured himself at trial, it has announced that it intends to appeal.

Monday, November 9, 2009

Here's a revealing article in the Buffalo News: Walking thin line in Village of Attica: Would-be informant says police coerced her into cooperation. It's about Bianca Hervey, a 20-year-old college student who got pulled over by police for failing to pay her traffic tickets. The police threatened to put her in jail for the night, unless she agreed to become a drug informant. Although Hervey did not use drugs or have any connections to the drug world, police told her it didn't matter--she could still work as a snitch and try to set people up. Frightened of going to jail, Hervey signed the informant agreement. When she told her father, attorney Richard Furlong, what had happened, however, he "went ballistic." Furlong went to the police and to the City of Attica and complained about the recruitment of young people into the world of drugs, but the police and the Village Board refused to change the policy.

This story illustrates how snitching has quietly become such an immense part of the criminal justice system. Many cities have policies like Attica's, in which police can recruit any potential offender as a drug informant--even a 20-year-old guilty of nothing more than a traffic violation. It was this same type of policy that led to the death of 23-year-old Rachel Hoffman in Tallahassee, Florida, and triggered Florida's ground breaking legislation on the subject of informant-creation. See post: Florida's "Rachel's Law" offers some protections for informants.

Last week the Supreme Court heard oral argument in an important snitching case: Pottawattamie County v. McGhee. Two prosecutors are being sued for fabricating evidence -- essentially pressuring a criminal informant until he came up with the story they wanted and then using that story at trial. The issue is whether they have absolute immunity, as prosecutors typically do for trial-related decisions, or whether they were acting more like investigators and therefore would only have qualified immunity from suit. Radley Balko over at Reason has posted this comprehensive discussion of the case and oral argument. For defendants who have been convicted based on fabricated evidence, the only remedy to which they are typically entitled is the overturning of their conviction. See this post: Judge finds prosecutorial misconduct in permitting false informant testimony. A finding that prosecutors who fabricate evidence might be personally liable would significantly alter the dynamic between informants and the government.

Sunday, November 8, 2009

The federal rules of criminal procedure have special re-sentencing provisions for informants who provide information after they have already started serving their sentences. Rule 35(b)(2) permits a court to reduce a prisoner's sentence if the government asks the court to do so more than one year after sentencing. Rule 35(b)(1) governs such requests made less than a year after sentencing. Approximately 1,700 federal prisoners got such sentence reductions in fiscal year 2008. At least one federal judge, Judge Tucker Melancon (D-LA), has complained that inviting inmates to provide information while they are in prison is an invitation to fabrication. See post: Professional prison snitch ring.

Last month, the Seventh Circuit issued an opinion interpreting Rule 35(b)(2). In U.S. v. Shelby, the court held that a district judge contemplating a motion for a sentence reduction can only reduce the sentence based on the extent of the defendant's cooperation, and not on the more general sentencing factors contained in 18 U.S.C. 3553(a) which judges are required to consider when initially sentencing defendants. By contrast, the Sixth Circuit has held that judges can consider 3553(a)'s general sentencing factors--which include things such as a defendant's likelihood of rehabilitation, prior criminal record, and other personal history--when resentencing under 35(b)(2).

This may seem like an esoteric point, but it is important for several reasons. First, it affects thousands of sentences each year. Second, judges can consider the 3553(a) factors in refusing to reduce a cooperator's sentence; they just can't consider those factors if they want to lower the sentence. The Sixth Circuit deemed this to be an unfair "one-way rachet"--the Seventh Circuit didn't. Shelby also resists the general tide of recent federal case law that favors judicial discretion, since United States v. Booker restored sentencing discretion to federal judges. (See Sentencing Law and Policy blog for detailed discussions of Booker-related developments.) The Seventh Circuit, and other circuits that agree with it, have curtailed that discretion when it comes to rewarding post-sentence cooperation.

Finally, this case is a reminder of how central snitching is to federal criminal law. With the abolition of parole, federal offenders are required to serve nearly their entire sentences, regardless of their conduct in prison, further education, or other rehabilitation. As this case makes case abundantly clear, the only chance they have to earn early release is to give information to the government.

Tuesday, November 3, 2009

Once in a while I share information about important non-snitch-related developments in the criminal system. The American Law Institute is an influential voice in the development of U.S. criminal law. It is made up of prominent judges, practitioners, and academics, and issues Restatements of Law and other scholarly resources that are widely relied on. One such resource is the Model Penal Code, a comprehensive criminal code worked out by criminal justice experts, on which many states have based their own criminal laws. The ALI has announced that it is withdrawing Section 210.6 of the Model Penal Code, which prescribes the procedures to be used when a court is considering imposing the death penalty. Here is the statement from ALI Director Lance Liebman:

For reasons stated in Part V of the Council's report to the membership, the Institute withdraws Section 210.6 of the Model Penal Code in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.

Here's a link to the report on which the decision was based: Report of the Council to the Membership of the ALI on the Matter of the Death Penalty. The Model Penal Code now has no provision for administering the death penalty, although the ALI describes itself as taking no position on the propriety of the death penalty itself. For a survey and discussion of recent death-penalty-related developments, see this post on Sentencing Law and Policy blog.